FEDERATION TO THE WORLD TRADE ORGANIZATION 33 страница

870. Some Members asked the Russian Federation to confirm that its import permit system would comply with OIE rules, i.e., permits would not be refused on grounds not recognised by the OIE for the animal diseases concerned. Further, with regard to the discovery of unauthorised substances in cargos, the Russian Federation would comply with the principle of applying an SPS measure only to the extent necessary to protect human or animal life and health. In the view of these Members, a refusal to issue import permit after single findings of non-compliances with no immediate risk for the consumer would not comply with this principle. The Russian Federation confirmed that its procedures for considering applications for import permits would comply with these two principles. The Working Party took note of this commitment.

871. In response to these concerns, the representative of the Russian Federation confirmed that, from the date of accession of the Russian Federation to the WTO, the grounds for refusing an import permit would be limited to:

(a) the introduction of restrictions with regard to separate countries (or regions of countries), including: due to the situation when the country (or region) was not free from infectious animal diseases;

(b) imposition of temporary suspension on the individual exporter or group of exporters;

(c) the imposition of restrictive measures (quarantine) in the Russian Federation, which is planned to import or through which a route passes of supervised products; and

(d) in cases where a registry exists and there is requirement for an establishment to be included on a registry of enterprises, the absence of the relevant establishment on the registry.

Moreover, if an application was signed by an unauthorised person or if the application included false data, the application will not be processed.

872. Some Members expressed concern that the grounds for refusing an import permit for any foreign countries for which non-compliance had been detected was not transparent and discriminated against imported products. Members underlined the necessity of mechanisms to prevent these restrictions from being more restrictive than necessary and for ensuring their transparency and possibility for exporters to appeal.

873. In response to a question from a Member concerning the procedure by which an applicant for an import permit could appeal the denial of an application, the representative of the Russian Federation explained that the new national regulation would also include procedures for administrative appeal of the denial of an import permit. He also noted that these actions or inactions could also be appealed to the Court as described in the Section "Framework for Making and Enforcing Policies".

874. A Member also raised concerns that Federal Customs Service Order No. 1283 limited the ports through which meat and meat products could be cleared. In particular, that Member sought information on whether the Russian Federation would consider less trade restrictive measures. In response, the representative of the Russian Federation stated that the Order was not an SPS measure, but related to customs administration and referred Members to paragraphs 553 through 562 for a discussion of this issue. He noted that the Order was being amended to permit ports in the Baltic and Vladivostok Customs areas to again be approved for the entry of meat and meat products. In response to further questions from Members, the representative of the Russian Federation explained that CU Acts did not include provisions limiting ports of entry for meat and meat products and referred Members to paragraph 680 and Table 13 and Table 14 for information on authority to designate checkpoints through which meat and meat products could be cleared.

875. In response to a question from a Member, the representative of the Russian Federation confirmed that minor documentation errors which did not alter the basic data contained in the document were not a basis for refusing an import permit. The legal circumstance that served as grounds for starting this administrative procedure for revocation of an import permit was the discovery of systematic (e.g., liable to administrative or criminal prosecution) violations, by the importer of the regulated cargo, of CU Decisions and other CU Acts and the laws of the Russian Federation in the field of veterinary medicine (including the presentation of forged veterinary documents or the discovery of inconsistency between the presented documents and the regulated cargo). Furthermore, he confirmed that the reasons for suspension, cancellation, or refusal of an import permit would be consistent with international standards, recommendations, and guidelines and the WTO SPS Agreement. The Working Party took note of this commitment.

876. Further, the representative of the Russian Federation confirmed that from the date of accession of the Russian Federation to the WTO, the import permit regime applicable to goods subject to veterinary and quarantine control would be operated under CU Decisions, other CU Acts, and provisions of the law of the Russian Federation that were published and available to the public and that these measures would be developed and applied in compliance with the WTO Agreement. The representative of the Russian Federation also confirmed that information requirements for the purposes of applying for an import permit would be limited to what was necessary for appropriate approval and control procedures and that any requirements for control, inspection and approval of individual specimens of a product were limited to what is reasonable and necessary as provided for in Annex C of the WTO SPS Agreement. Moreover, he confirmed that his government would maintain and notify the public of a clearly defined procedure under which an applicant for an import permit could appeal the suspension, cancellation, or refusal of an application, have that appeal adjudicated, and receive a written response explaining the reasons for the final decision and any further action required to obtain a permit. The Working Party took note of these commitments.

(ii) Transit through the Russian Federation of Goods Subject to Veterinary (Sanitary) Control

877. Some Members of the Working Party expressed concern that the restrictions of the Russian Federation and the CU on the transit of goods subject to veterinary/sanitary control through the territory of the CU, including the Russian Federation were not in accordance with OIE standards, norms, and recommendations. In the view of these Members, the Russian Federation refused the transit of goods for arbitrary reasons. In addition, the time-limits for granting permission to transit and the appeal process related to a refusal to permit transit were unclear. These Members sought a commitment from the Russian Federation that it would develop and apply SPS measures affecting the transit of products subject to veterinary control through the territory of the Russian Federation in compliance with the OIE and the WTO SPS Agreement. In light of the CU, Members requested detailed information on the rules and procedures that would apply to goods subject to veterinary/sanitary control in transit through the CU.

878. In response, the representative of the Russian Federation explained that, since 1 July 2010, the legal framework for the issuance of transit permit was set in Decision No. 317 of the CU Commission, in Chapter VII of the "Regulation on the Single System of Veterinary Control at the Customs Border of the Customs Union". The principles set at CU level were the following:

- A transit permit was required only for transit of live animals and raw materials of animal origin. The transit permit was issued by the CU Party whose territory was the first entry point;

- Veterinary control of controlled goods at entry points was carried out after the submission of a waybill and (or) veterinary certificate;

- After completion of documentary control, veterinary inspection of animals was carried out, including: identification numbers of animals were compared (tattoos, chips, ear tags, stamps, etc.) with numbers indicated in veterinary certificates, conditions of carriage were verified, and the condition of animals and possibility of their further transportation were examined;

- Examination during transit of controlled goods (except for animals) was performed only by state regulatory authorities at a checkpoint or in the presence of information about non-conformity of controlled goods to the declared goods;

- According to the results of monitoring, the Border Control Inspection Post Officer made a decision and put a stamp on the shipping documents and on the veterinary certificate, in accordance with the form of Annex No. 3: "Transit enabled" or "Transit prohibited", and at the point of exit from the customs territory of the CU, a stamp "Transit Completed", then assured it by the seal and signature, indicating such Officer's name and initials;

- All necessary data was entered in the register of transit in the form in accordance with Annex No. 9 of that Regulation and entered into the system of electronic records; and

- The owner of the controlled goods, who received the permit of transit of controlled goods through the territory of the CU, had to comply with the veterinary legislation of the CU.

879. Some Members expressed concerns regarding the requirement that controlled goods in transit, which had been inspected and were conveyed under seal, had to comply with CU veterinary requirements. From these Members' perspective, this requirement could not be justified as a safety measure and restricted trade with third countries.

880. The representative of the Russian Federation noted concerns from Members regarding the requirement for controlled goods in transit to comply with CU veterinary requirements and confirmed that CU Commission Decision No. 317 had been amended by CU Commission Decision No. 724 of 22 June 2011 to eliminate this requirement, so that from the date of accession of the Russian Federation to the WTO, controlled goods transiting through the territory of the CU under customs seal would not be subject to CU veterinary requirements. The Working Party took note of this commitment.

881. Currently, at the level of the Russian Federation, the procedure for issuance of transit permit was set-out in the MOA Order No. 1 of 9 January 2008 (as last amended on 26 June 2008). This Order continued to apply to the extent that it did not conflict with CU Commission Decision No. 317. As noted in paragraph 858, the administrative regulation on procedures for issuing permits to import into, export from, and transit through the Russian Federation in order to align with the Customs Union rules and regulations, had been developed. The annex to the administrative regulation specified information that applicants had to provide to obtain a permit for controlled goods to transit the territory of the Russian Federation.

882. A Member of the Working Party requested information on the treatment of "non-safe" countries whose animal products fulfilled the import conditions established in the OIE Code, and whether a transit permit was also required for such products. In response, the representative of the Russian Federation stated that, there were two reasons to suspend, or cancel a transit permit which were restrictive measures which had been introduced by the Russian Federation against particular countries (regions of countries), when this country (or region) was not free from infectious animal diseases included on the list formerly known as the OIE List A, or where the importing country did not permit such imports. Those measures were, in turn, to be in compliance with the OIE requirements. He further stated that the Chief State Veterinary Inspector of the Russian Federation would provide an opinion to Rosselkhoznadzor on whether to issue a permit for transit of live animals and raw materials of animal origin through the CU Parties. The purpose of such a requirement for transit of live animals and raw materials of animal origin was to prevent the spread of transmissible diseases into the territory of the CU.

883. Some Members sought additional information on whether importers applied for transit permits for individual instances of importation or (as for import permits) for trade over a period of a calendar year. They also sought information on the procedures for appeal of such decisions and any applicable fees. In response the representative of the Russian Federation stated that transit permits were issued for a period of one calendar year. A transit permit could be requested for any amount of goods and the amount requested could not be the basis for refusing the transit permit. Such permits were issued free of charge. If a transit permit was not issued, the applicant could appeal to higher officials/instances and/or to the Court. Applicants had the right to appeal against actions (or inactions) of the Rosselkhoznadzor officials within applicable administrative or judicial procedures. He repeated that the purpose of such a requirement for transit of live animals and raw materials of animal origin was to prevent the spread of transmissible diseases into the territory of the CU.

884. A Member of the Working Party asked why it was necessary to again control live animals that have been controlled by Federal authorities upon entering the Russian territory, and which had been assessed as disease free and not posing any health risk. In response, the representative of the Russian Federation stated that officials of the relevant State Veterinary Service of a CU Party conducted a single inspection of live animals in transit through the territory of the CU at the place where the animals first entered the territory of the CU. These animals were then monitored for health purposes at places of rest and counted at the place of exit.

885. The representative of the Russian Federation confirmed that relevant provisions of CU Commission Decision No. 317, the administrative regulation and other measures relating to the transit of goods subject to veterinary control through the territory of the Russian Federation would be applied in compliance with the OIE Code and the WTO SPS Agreement. The Working Party took note of this commitment.

(iii) Veterinary Certificates

886. Members requested information on CU requirements related to the development and implementation of veterinary certificates. Members sought to ensure that such certificates would be consistent with international standards, recommendations and guidelines. If the CU adopted veterinary certificates, Members requested information on the continued validity of current bilateral certificates agreed with the Russian Federation. In their view, these bilateral certificates should remain valid until a replacement was agreed with the CU Parties.

887. The representative of the Russian Federation stated that 40 CU common forms of veterinary certificates for import into the CU territory from any third country had been adopted by CU Commission Decision No. 607 of 7 April 2011, for each of the categories of controlled goods established in CU Commission Decision No. 317. He confirmed that in accordance with CU Commission Decision No. 317, as last amended by CU Commission Decision No. 724 of 22 June 2011, and CU Commission Decision No. 726 of 15 July 2011 "On Veterinary Measures", veterinary certificates between exporting countries and the Russian Federation finalized prior to 1 July 2010 would be valid at least until 1 January 2013. Furthermore, CU Commission Decision No. 726 of 15 July 2011 provided that the competent authorities of the CU Parties could negotiate and agree to veterinary certificates with requirements that differed from the CU common form and specific CU Common Requirements, if an exporting country made a substantiated request prior to 1 January 2013 to negotiate such a veterinary export certificate. The decision also provided that bilateral veterinary export certificates initialled by one of the CU Parties before 1 July 2010, as well as any subsequent amendments to such certificates agreed with the authorised body of such CU Party, would remain valid for exports from the relevant country into the customs territory of the CU until an export certificate was agreed with a CU Party based on the agreed positions of the other CU Parties. Bilateral veterinary export certificates initialled by one of the CU Parties between 1 July 2010 and 1 December 2010 would remain valid for import and circulation of relevant goods, only in the territory of the CU Party that initialled the certificate, until a bilateral veterinary export certificate was agreed with a CU Party based on the agreed positions of the other CU Parties. While such bilateral veterinary export certificate could contain requirements that differed from the CU Common Form and Common Requirements, such certificates had to ensure the appropriate level of protection as determined by the CU Parties. These new certificates were also required to include terms, including provisions on the relevant product, that were no less favourable than those in an international treaty that was concluded prior to 1 July 2010 between a CU Party and the third country.

888. A Member expressed concern that the CU Parties were not recognizing the continued validity of existing certificates and that cases of blockages at the Russian border of consignments destined for Kazakhstan and accompanied by a bilateral certificate signed with Kazakhstan prior to 1 July 2010 had occurred. In response, the representative of the Russian Federation stated that the bilateral certificates that this Member had signed with Kazakhstan could only be used to export product to Kazakhstan for circulation within that country and noted that consignments were being delivered to Kazakhstan.

889. Some Members expressed concern that the CU Commission had adopted the 40 common forms of veterinary certificates and 38 Chapters of common veterinary requirements that did not conform to international standards, recommendations and guidelines, in particular OIE standards, recommendations and requirements. These Members also raised concerns that contrary to the requirements of the WTO SPS Agreement, interested parties, including Members had not been accorded an opportunity to provide comments on these measures before they were adopted. The representative of the Russian Federation responded that CU Commission Decision No. 625 of 7 April 2011 now provided a CU process for receiving comments from the public on proposed SPS measures.

890. The representative of the Russian Federation confirmed that amendments of the common veterinary requirements and to the common forms of certificates were being prepared in parallel so as to ensure compatibility with international standards, recommendations and guidelines in particular OIE standards. He confirmed that the amendments to the common veterinary requirements and to the common forms of certificates would enter into force simultaneously no later than the date of the accession of the Russian Federation to the WTO. The Working Party took note of these commitments.

891. Some Members noted that the Russian Federation had drafted proposed amendments to a few of the CU common veterinary requirements. These Members expressed concerns that these proposed amendments were extremely limited, failed to take into account Members' comments, were not based on scientific principles, could result in arbitrary or unjustifiable discrimination, and, most importantly, failed to bring the CU common veterinary requirements into conformity with international standards, recommendations and guidelines, e.g., by requiring conditions for animal diseases which were not listed in the OIE Code. Members noted the Russian Federation's commitments in paragraph 890 regarding the CU common veterinary requirements and common forms and expressed concerns that the Russian Federation would not adopt all of the necessary amendments to achieve compatibility with international standards, guidelines and recommendations in particular OIE standards by the date of the accession of the Russian Federation to the WTO or that these amendments would not enter into force as provided in paragraph 890. These Members urged Russia to engage in serious efforts, including through consultations with WTO Members, with a view to ensure the timely implementation of the commitments in paragraph 890.

892. Members expressed concern regarding a mandatory requirement to use a common CU Veterinary Certificate. They noted that currently, some exporting countries had veterinary certificates that included requirements that differed significantly from those in the common form and the veterinary requirements of the Russian Federation. These differences reflected conditions in the exporting country or region, in line with Article 6 of the WTO SPS Agreement and other international agreements. These Members sought confirmation that the Russian Federation and its CU partners would negotiate specific certificates with requirements that could differ from the CU Common Requirements and that export certificates currently in effect with the Russian Federation would remain valid until a CU replacement had been agreed. Moreover, if there was no certificate governing trade in a regulated product, these Members sought confirmation that an exporting country could negotiate a certificate with the CU Parties that included requirements that differed from the CU Common Requirements.

893. The representative of the Russian Federation confirmed that the Russian Federation and its CU Parties would work with interested Members to negotiate veterinary certificates that included requirements that differed from the CU common form and specific CU Common Requirements, if an exporting country made a substantiated request prior to 1 January 2013 to negotiate such a veterinary export certificate. Bilateral veterinary export certificates initialled by one of the CU Parties before 1 July 2010, as well as any subsequent amendments to such certificates agreed with the authorised body of such CU Party, would remain valid for exports from the relevant country into the customs territory of the CU until an export certificate was agreed with a CU Party based on the agreed positions of the other CU Parties. Bilateral veterinary export certificates initialled by one of the CU Parties between 1 July 2010 and 1 December 2010 would remain valid for import and circulation of relevant goods, only in the territory of the CU Party that initialled the certificate, until a bilateral veterinary export certificate was agreed with a CU Party based on the agreed positions of the other CU Parties. These new certificates would include terms on matters dealt within an international treaty that were no less favourable than the corresponding terms on that matter in such treaty that was concluded prior to 1 July 2010 between a Party and the relevant third country. While such bilateral veterinary export certificates could contain requirements that differed from the CU Common Form and specific provisions of the Common Requirements, such certificates had to ensure the appropriate level of protection as determined by the CU Parties. The Working Party took note of these commitments.

894. The Russian Federation had concluded Agreements on veterinary certificates for most types of animal products with the veterinary services of many exporting countries in order to facilitate trade in animal products. The requirement to obtain a veterinary certificate (i.e., the certificate adjusted for a particular country) of the form established by such an Agreement was not mandatory for importing these products into the Russian Federation. In the absence of such an Agreement with the exporting country, animal products were exported to the Russian Federation based on the requirements listed in the Letter of the State Veterinary Service of the Russian Federation No. 13-8-01/1-1-3-7 of 23 December 1999, which was published in its electronic database for legal reference. He explained that in the relevant veterinary certificate, the state veterinary service of the exporting country certified that the covered products fulfilled the terms and conditions set-out in the certificate. The certificate also included information on the veterinary situation in the exporting country at the moment of production and export of products and raw materials of animal origin to the Russian Federation with regard to highly dangerous animal diseases, as relevant, such as Foot-and-Mouth disease, Rinderpest, and African swine fever. The veterinary service of the exporting country would confirm the absence of such diseases when issuing the certificate. However, since the formation of the Customs Union, the CU Common Forms of Veterinary Certificates that were set-out in CU Commission Decision No. 607, or bilateral veterinary certificates as set-out in CU Commission Decision No. 726 of 15 July 2011 "On Veterinary Measures", had to be used. In response to a question from a Member, the representative of the Russian Federation further explained that, if a third country sought to export to a CU Party a commodity for which veterinary certification was required according to the CU Common List of Goods subject to veterinary control, but for which no CU Common Form of certificate and no CU Common Requirements existed, a bilateral certificate with the interested country could be developed based on a coordinated position of the CU Parties, and such a bilateral certificate would be based on relevant international standards, guidelines and recommendations as provided for in CU Commission Decision No. 721 of 22 June 2011 "On Application of International Standards, Guidelines and Recommendations". If, according to the CU Common List of Goods subject to veterinary control, no veterinary certification was required for a commodity, or if the commodity was not included in the said CU Common List, the Russian Federation would not require a veterinary certificate.

895. Some Members stated that a veterinary certificate should not require certification of provisions that were not mandatory requirements under CU acts or in the absence of CU mandatory requirements, under international standards, recommendations, and guidelines, e.g., to certify for a disease which was not the object of a CU act or was not subject to the same level of surveillance within the CU or Russian territory as required in the certificate. If the Russian Federation or the CU sought to have stricter animal health requirements than those set-out in the OIE, the Russian Federation or CU must demonstrate that, based on risk assessment, as well as active and passive surveillance in the Russian Federation or the CU territory for animal diseases that could be present on the territory of the Russian Federation or the CU, the animal health status of the Russian Federation or the CU for the disease concerned was such that it justified such stricter requirements. The representative of the Russian Federation confirmed that veterinary certificates would not require certification of provisions that were not justified based on mandatory requirements applicable and surveillance carried out within the territory of the Russian Federation or the CU. The Working Party took note of this commitment.

896. Some Members asked how it was possible to export products to the Russian Federation in the absence of existing bilateral certificates: (i) if CU Common Veterinary Requirements were set for the concerned product, and (ii) if no CU Common Veterinary Requirements were set. The representative of the Russian Federation answered that if CU Common Veterinary Requirements were set for the concerned product, the exporting country could use the CU common veterinary certificate, or could seek to negotiate with the CU Parties a bilateral certificate containing requirements that differed from those in the CU Common Veterinary Requirements to reflect the particular conditions of the exporting country. In the case where no CU Common Veterinary Requirements were set for the concerned product, a bilateral certificate with the interested country could be developed based on an agreed position of the CU Parties, and such a bilateral certificate would be based on relevant international standards, guidelines and recommendations.

897. With respect to the terms of veterinary certificates, the representative of the Russian Federation confirmed that in compliance with the provisions of the WTO SPS Agreement, which identified the norms and standards of the OIE as the requirements used in the international trade of live animals and products of animal origin, the Resolution of the Government of the Russian Federation No. 159 of 24 March 2006 "On Implementation of the Veterinary Measures Regarding Importation of Live Animals and Products of Animal Origin to the Customs Territory of the Russian Federation" stipulated that when importing live animals and products of animal origin into the customs territory of the Russian Federation, if requirements stated in Russian legislation were more stringent than international veterinary requirements, the international standards (e.g., the relevant provisions of the OIE Code) were to be applied. The representative of the Russian Federation also stated that in practice, the Russian Federation either brought the rules into conformity with OIE standards or relied upon scientific evidence to maintain the more stringent standard. He further noted that Resolution No. 159 applied in the case of the Letter of the State Veterinary Service of the Russian Federation No. 13-8-01/1-1-3-7 of 23 December 1999, and if the letter applied more stringent veterinary requirements than international standards, the international standards would apply.